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Book Review: Maine Law Journal
Class actions with no class
Alan R. Nye
Spring 2003
HAVING JUST READ The Rule of Lawyers, a book that points out everything that is wrong with our legal system, I was intrigued by a recent article in the Wall Street Journal's Opinion section captioned "Delivering Justice," proposing a cure for the health care crisis. It cited a recent medical study that concluded most brain damage and cerebral palsy among newly born infants is caused by factors outside the control of the delivery room. This is contrary to what many had long been assumed was the major cause, namely, interruption of oxygen during labor.
So what, you ask? The author of this article stated that lawsuits blaming OBs for cerebral palsy and other infant brain damage might be today's single largest branch of medical malpractice litigation. These lawsuits give lawyers the highest settlements and richest contingency fees of nearly all medical malpractice claims. Yet, if the study is to be believed, many, if not most, of the suits have no scientific basis!
The story--lawyers earning large contingency fees from lawsuits based upon specious and sometimes completely nonexistent evidence--sounded very familiar. It was then that I noticed the article's author was Walter Olson: the same man who wrote The Rule of Lawyers.
In this book, Olson explores the various products in our society (for example, tobacco, guns, cars, asbestos, and lead paint) that have generated class action lawsuits resulting in astronomical verdicts and colossal legal fees. In certain cases, billion-dollar awards and settlements bankrupted major companies. (Dow Corning, for example, in the silicone breast implant cases. Manville, Owens Corning and Keene Corporation were each forced into bankruptcy by asbestos suits, despite the fact that many were filed on behalf of plaintiffs who were never sick.)
Other manufacturers such as GM, Bristol Myers Squibb and DuPont spent several million dollars defending lawsuits on silicone breast implants that a subsequent independent panel of thirteen scientists convened by the Institute of Medicine at the request of Congress determined "do not cause any major diseases."
Any ethical lawyer will be ashamed and embarrassed by the unscrupulous conduct of most of the lawyers and judges portrayed in this book. Olson, author of The Litigation Explosion and senior fellow at the Manhattan Institute, has written a scathing indictment of our current legal system that allows billion-dollar class action lawsuits--often based on faulty or even nonexistent evidence of liability.
There are many problems with America's litigation situation, argues Olson, but the primary one is power. "We give lawyers far more power than other countries do and then provide less supervision of the way they use that power," he avers.
Olson believes the progressive loosening of rules by judges to allow questionable class action lawsuits has brought about a system where lawyers are, in effect, enacting laws. This is a violation of separation of powers, writes Olson, since legislators are supposed to have sole authority to enact laws.
This book is an eye-opener for those attorneys--that is, the vast majority of us--who don't practice in the area of class action litigation. Did you know, for example, that the estimated total of settlements and payouts to silicone breast implant claimants totaled $7 billion? After a Connie Chung television report in 1990 which profiled five women who received implants and became ill, women nationwide complained that they also felt fatigue, headaches, and similar symptoms, just like the women on the show.
Lawyers throughout the country pounced on the story and ran ads informing women with implants that if they experienced "neck pains or headaches" that they "may be entitled to compensation." A Houston law firm asked: "are 'dream breasts' to die for?" and one of its lawyers informed viewers in a TV news show that women with implants had "time bombs" in their breasts.
Cases were soon filed all over the country and in 1992 a plaintiff won $25 million against Bristol Myers Squibb in a case in which her own expert agreed her symptoms could be compared to those of a "bad flu." Many more multimillion-dollar verdicts followed.
Just a few years later, major studies by teams of researchers at the Mayo Clinic, Harvard, and many other leading institutions found no link between silicone-gel breast implants and the rate at which women contract auto immune or connective-tissue diseases. By the end of 1995, at least twenty studies and abstracts pointed to the fact that silicone compounds are inert and do not react in the body. PBS's Frontline summed up the data this way: "Women with implants do not have measurably different health from women without implants."
Olson takes unscrupulous mass tort lawyers to task in their suits against other products, like: tobacco, guns, asbestos, and automobiles. Time and again, he shows that the suits were frequently based on faulty scientific evidence, that the claimants often suffered little or no damages and that crash tests on television magazine shows (like the notorious NBC 1992 Dateline program) required "safety consultants" to conceal incendiary devices near the gas tank of a vehicle to make the complained-about defect occur. Other similarly staged tests appeared on other shows.
The book also explores the cozy relationship between state attorneys general and the class action bar, and the even closer relationship between local lawyers and certain state court judges in the South where these massive lawsuits are often filed and brought to trial. Louisiana, Mississippi, Alabama, and Texas have been found to be extremely friendly to plaintiffs' interests. How else do you explain that since 1995, more than twenty-one thousand people have filed lawsuits, most claiming injury for widely used prescription drugs or asbestos, in Jefferson County, Mississippi, which has a population of 8,385?
Many judges in these areas are elected, and it's no coincidence that many of the class action plaintiffs' lawyers have been important contributors to the election campaigns of the same judges hearing their cases. When The American Lawyer investigated plaintiffs' firm donations to judges in Alabama, it found they were "breathtakingly generous."
When he was chief justice of the West Virginia Supreme Court, Richard Neely wrote: "As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else's money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me." The out of state defendants, Neely wrote, "can't even be relied upon to send a campaign donation."
Olson's repeated comments hit like left jabs--the first dozen or so don't seem all that bad. But it is the repeated pounding of his message, over and over, that makes this book effective. Although you may believe that you already know all the counterarguments to complaints about frivolous lawsuits and unethical conduct, don't be so sure. I read this book prepared to defend our system of litigation against all attacks as being the best in the world. Olson has forced me to reassess my views. You too, may be surprised by the information in this book.
Olson also operates the Web site www.overlawyered.com, where you can find some of the same information contained in this book, and much, much more. Here are new theories of liability, and astronomical awards in lawsuits involving such things as global warming, the fast food industry, securities, and literally hundreds of other products. You'll be tempted to hang your head in shame, roll your eyes in amazement--or wonder where to sign up for a piece of the action.
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